Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza and Laura H. Parsky, Judges, Super. Ct. No. J217773
NARES, J.
Following a contested adjudication hearing, the juvenile court sustained a petition alleging E.R. came within the provisions of Welfare and Institutions Code section 602 for having committed vandalism (count 1: Pen. Code, § 594, subds. (a), (b)(2)(A)) and for possessing graffiti tools (count 2: § 594.2, subd. (a) (hereafter § 594.2(a)). At the disposition hearing, the court set the maximum period of confinement at one year two months and placed E.R. on probation without wardship for a period not to exceed six months under Welfare and Institutions Code section 725, subdivision (a).
All further statutory references are to the Penal Code unless otherwise specified.
E.R. appeals, contending (1) the evidence was constitutionally insufficient to support the court's true findings that she committed vandalism and that she was in possession of a felt tip marker with the intent to commit vandalism; and (2) the prohibited possession of a black felt tip pen under section 594.2 is impermissibly vague and overbroad because it fails to establish standards for the police and the public that are sufficient to guard against the arbitrary deprivation of liberty interests. We conclude substantial evidence supports the court's findings as to counts 1 and 2, and we reject E.R.'s facial challenge to section 594.2(a). Accordingly, we affirm the judgment.
FACTUAL BACKGROUND
A. The People's Case
At about 3:00 p.m. on June 9, 2007, Ismael Salgado, a security guard at the Westfield University Towne Center shopping center in La Jolla, observed from a distance of 40 to 50 feet E.R. crouching down close to the ground, with her back toward him, in front of a wall under a bridge that connected the mall to a condominium residential area. Residents had complained about graffiti in the area. E.R. was with another girl, Sara, who appeared to be acting as a lookout.
All further references to dates are to calendar year 2007.
Salgado saw that E.R. was holding a big marker pen and making small motions on the wall with her hand. Salgado described the pen as a "thick marker" about 10 inches in length and about one inch wide.
Sara made eye contact with Salgado and said something to E.R., who quickly stood up. Salgado radioed his supervisor as E.R. and Sara began walking up a hill to a trash container next to an ATM machine. Salgado continued watching E.R. while he spoke on the radio. However, he lost sight of her for a minute when a couple walking a dog spoke to him.
Salgado walked closer to the wall where the girls had been and saw graffiti on the wall. The graffiti was red and was right in the spot where E.R. had been crouching and moving her hand. Salgado had seen the wall a day earlier and the graffiti was not there.
Salgado followed the girls up the hill and spoke to them. He asked E.R. what she had been doing at the wall, and she said, "Nothing." He then asked E.R. what she had been writing on the wall, and she said she did not have anything. Salgado saw about three inches of a marker pen about nine or 10 inches in length with a thick tip sticking out from the waistband of her pants. He asked her for it and she said she had "just found it there on the ground." At trial, the parties stipulated that the marker was a black ink pen. On cross-examination, Salgado testified he did not find a red marker.
Salgado asked E.R. to follow him to the office. As he was speaking to her, E.R. was rude, angry and mean. Sara started crying and said, "I didn't do it, she did it."
The girls followed Salgado to the office. E.R. refused to cooperate when told to call her mother, so police were called and they arrived shortly thereafter.
B. The Defense
Sara testified that on June 9, she and E.R. walked behind the Ben & Jerry's at the mall. Seeing red graffiti "kind of low" on the wall, E.R. bent over in front of the graffiti and looked at it. E.R. did not normally carry markers, but she had a black marker that day. Sara did not see any other markers, and she did not see E.R. mark anything. On cross-examination, Sara testified that when E.R. crouched down to look at the graffiti, she lifted her hand but did not make any motions with it. Sara stated that when the security officer contacted them, she cried because he was asking questions and she "[doesn't] really do well under pressure." Sara also indicated that she and E.R. had been waiting for a friend by the wall. When asked why they decided to move to a different location when they were supposed to meet their friend by the wall, Sara said, "I don't know."
E.R. testified she went to the mall to meet Sara and a person named "CJ". She and Sara were going to meet CJ at the wall. E.R. looked at the graffiti on the wall to "kill time." She had a black Sharpie marker that day and denied having a red Sharpie marker. When asked why she had the black Sharpie, E.R. responded, "My mom was out of town. So I took the bus that day. It was on the bus, so I just picked it up. It was big." After she saw the security guard, she and Sara walked away. They gave up waiting for CJ and decided to look around at the shops.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE
E.R. contends the evidence was constitutionally insufficient to support the court's true findings that she committed vandalism in violation of section 594, subdivision (a) (hereafter section 594(a)) as alleged in count 1 and that she was in possession of a felt tip marker with the intent to commit vandalism in violation of section 594.2(a) as alleged in count 2. We reject this contention.
A. Standard of review
In assessing the sufficiency of the evidence to support a juvenile court judgment sustaining a petition under Welfare and Institutions Code section 602, we apply the substantial evidence standard. (In re Manuel G. (1997) 16 Cal.4th 805, 822; In re Angel R. (2008) 163 Cal.App.4th 905, 913.) Under that standard, an appellate court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (In re Manuel G., supra, 16 Cal.4th at p. 822.) The court must review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt, and it must "'"'presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence.'"'" (Ibid.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) Although substantial evidence may consist of inferences, they must rest on the evidence and be the product of logic and reason; inferences that are the result of mere speculation or conjecture cannot support a finding. (Ibid.)
B. Analysis
1. Vandalism (count 1: § 594 (a))
We reject E.R.'s assertion there is no evidence she was the person who defaced the wall with red graffiti and conclude substantial evidence supports the court's finding that she committed vandalism. Section 594(a)(1) provides: "(a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: [¶] (1) Defaces with graffiti or other inscribed material."
Here, security guard Salgado testified he observed E.R. crouched close to the ground in front of the wall with her back towards him. She was holding a big, thick marker pen about 10 inches in length and about one inch wide, and making small motions with her hand. Salgado indicated the red graffiti was not on the wall when he saw the wall the previous day. Salgado also indicated that when E.R.'s companion, Sara, made eye contact with him, she said something to E.R., who quickly stood up, and he watched the girls walk away. Salgado lost sight of the girls for a minute, then followed them. He asked E.R. what she had been writing on the wall, and she responded that she did not have anything. Salgado also testified he saw three inches of a nine- or 10-inch marker pen with a thick tip sticking out from E.R.'s waistband. When he asked her for it, E.R. told him she had just found it on the ground in front of the wall. E.R. gave a conflicting story at trial, indicating she found it on a bus that took her to the mall that day. Salgado also testified that when he asked E.R., who was rude and uncooperative, to follow him to the office, Sara started crying and said, "I didn't do it, she did it."
From the foregoing substantial evidence, any trier of fact could reasonably infer beyond a reasonable doubt that E.R. had defaced the wall with graffiti using a large red marker pen, and she had disposed of that marker during the time Salgado lost sight of her. E.R.'s abrupt behavior in quickly standing up and walking away when Sara spoke to her after Sara made eye contact with Salgado strongly indicated consciousness of both E.R.'s guilt and Sara's complicity, as did Sara's emotional utterance, "I didn't do it, she did it," when Sara realized the security guard was going to take them to the mall security office. The court heard evidence of E.R.'s conflicting statements indicating she found the large black Sharpie marker on the bus that took her to the mall, and she found that same marker on the ground in front of the wall just before Salgado observed her crouched in front of the wall making small motions her hand while holding a large marker. The judgment sustaining the petition as to count 1 indicates the court found E.R. and Sara were not credible witnesses, and E.R.'s conflicting statements regarding when and where she obtained the black marker support the court's finding, as did Sara's inability at trial to explain why, after she made eye contact with Salgado, she and E.R. walked away from the defaced wall when they were supposed to meet a friend there.
2. Possession of graffiti tools (count 2: § 594.2 (a))
Substantial evidence also supports the court's finding that E.R. possessed the large black Sharpie marker with the specific intent to commit vandalism, as alleged in count 2. As relevant here, section 594.2(a) prohibits the possession of a "felt tip marker . . . with the intent to commit vandalism or graffiti." Subdivision (c)(1) of that section defines a felt tip marker as "any broad-tipped marker pen with a tip exceeding three-eighths of one inch in width, or any similar implement containing an ink that is not water soluble."
It is undisputed that shortly after she crouched in front of the wall, Salgado observed that E.R. had in her waistband a large black Sharpie marker. Salgado testified the marker was nine or 10 inches in length with a "very thick" tip. As already discussed, the prosecution presented substantial evidence from which any trier of fact could reasonably infer beyond a reasonable doubt that E.R. had defaced the wall with graffiti. Such evidence establishes beyond a reasonable doubt that E.R. possessed the requisite intent. We conclude the record of the adjudication hearing contains substantial evidence from which any trier of fact could reasonably infer beyond a reasonable doubt that the black Sharpie marker found on E.R.'s person shortly after she defaced the wall with graffiti was a broad-tipped marker pen with a tip exceeding three-eighths of one inch in width within the meaning of section 594.2(c)(1), and that she possessed that marker with the intent to commit vandalism or graffiti within the meaning of section 594.2(a).
II. CONSTITUTIONALITY OF SECTION 594.2 (a)
E.R. also contends the prohibited possession of a black felt tip pen under section 594.2 is impermissibly vague and overbroad because it fails to establish standards for the police and the public that are sufficient to guard against the arbitrary deprivation of liberty interests. This contention is unavailing.
A. Applicable legal principles
"The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of 'life, liberty, or property without due process of law,' as assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7)." (Williams v. Garcetti (1993) 5 Cal.4th 561, 567.) To satisfy the constitutional command of certainty, a penal statute must meet two basic requirements: "(1) the statute must be sufficiently definite to provide adequate notice of the conduct proscribed; and (2) the statute must provide sufficiently definite guidelines . . . to prevent arbitrary and discriminatory enforcement." (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1106-1107.)
A statute is only required to have "a reasonable degree of certainty" to survive a challenge based on constitutional vagueness, and will not be held void for uncertainty "'"if any reasonable and practical construction can be given to its language."'" (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1107.)
B. Analysis
E.R.'s primary claim is that section 594.2 is facially vague and overbroad in violation of the state and federal guarantees of due process because it "contains no standard for determining what a suspect has to do or refrain from doing to avoid arrest." This claim is unavailing.
Section 594.2(a) is definite to a reasonable degree of certainty so as to provide adequate notice of the conduct it proscribes, and it also provides reasonably definite guidelines to prevent arbitrary and discriminatory enforcement. As relevant here, section 594.2(a) prohibits the possession of a "felt tip marker . . . with the intent to commit vandalism or graffiti," and subdivision (c)(1) of that section defines a felt tip marker as "any broad-tipped marker pen with a tip exceeding three-eighths of one inch in width, or any similar implement containing an ink that is not water soluble." The prohibited implement is defined to a reasonable degree of certainty: A "broad-tipped marker pen with a tip exceeding three-eighths of one inch in width, or any similar implement containing an ink that is not water soluble." (§ 594.2, subd. (c)(1).) Here, the large Sharpie marker pen with a "very thick" felt tip that the security guard found on E.R.'s person clearly falls within the parameters of the statutory definition of a "felt tip marker" for purposes of section 594.2(a).
The mens rea required for a violation of section 594.2(a) is also defined to a reasonable degree of certainty. Possession of a "felt tip marker," as that term is defined in subdivision (c)(1), is proscribed under section 594.2(a) only if the possessor possesses that implement with the specific intent to "commit vandalism or graffiti." E.R. claims that, under section 594.2(a), "it is only the citizen's bad thoughts coupled with the possession of a felt tip marker that make [her] a criminal." She also claims the statute "still leaves police officers, judges and juries to divine the citizen's thought process while possessing one of the enumerated, legal instruments." The facts of this case demonstrate these claims are unavailing. E.R. demonstrated her intent to "commit vandalism or graffiti" by actually committing such vandalism shortly before Salgado discovered the Sharpie marker partially concealed in her waistband. We conclude section 594.2 is not facially vague and overbroad.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., IRION, J.